What the law says
Sadly, one of the causes of divorce or relationship breakdown is domestic abuse, whether physical or emotional. The situation is traumatic enough on its own, but when there are children of the marriage or partnership, it can become very complicated. Numerous competing rights need to be balanced. How do you go about leaving an abusive relationship with a child?
Types of abuse
The abuse may not be sexual or physical in nature. Verbal, emotional and psychological abuse are also extremely serious and can lead to marital breakdown. Emotional abuse includes:
- Using degrading language, insults, criticism, or name calling
- Screaming and shouting or refusing to talk
- Harassing or engaging in manipulative behaviours to make the victim believe they are “crazy” or imagining things
- Humiliating the victim privately or in the presence of other people or blaming them
- Engaging in acts of control
- Denying the abuse
Effect on children
Children who see, hear or experience these behaviours by one parent against the other are negatively affected and may be traumatised. Therefore, it is important to have a safety plan when choosing to leave an abusive marriage or relationship.
Relocating with a child
Relocation with a minor child within the borders of South Africa is a bit of a grey area in law. Section 18(4) of the Children’s Act stipulates that co-holders of guardianship over a child can exercise their parental responsibilities and rights independently and without the consent of the other guardian’s rights. On the face of it, this means that the primary caregiver parent can independently and without the consent of the other parent relocate inter-provincially with the child. However, the provisions of section 6(5) state that a person who has parental responsibilities and rights in respect of a child, where appropriate, must be informed of any action or decision taken in a matter concerning that child which significantly affects the child. More importantly, section 31 of the Act also states that a co-holder of parental responsibilities and rights must consult and give consideration to the views of other co-holders of responsibilities and rights when making decisions which are likely to change significantly or to have a significant adverse effect on the co-holder’s exercise of parental responsibilities and rights. A decision to relocate will undoubtedly have a major impact on the other co-holder’s contact rights. Therefore, they should be consulted.
But in the event of abuse?
But what happens when a mother, in an abusive relationship, decides to leave the marital home with the child or children and the father does not consent? Since the Children’s Act does not specifically set out the criteria for cases dealing with the issue of relocation, the precedent set by case law needs to be taken into account.
In Joubert v Joubert the Cape High Court stated that, although the primary caregiver has to consult the other parent with responsibilities and rights in respect of the child, the primary caregiver is not bound to heed the views and wishes of the other parent. The court further held that a failure to give consideration to the views of the other parent and failure to inform the other parent did not render the decision by the primary caregiver void or invalid. However, failure to obtain the consent of the other parent would render the decision subject to review. On the face of it, this would appear contradictory.
Best interests of the child
Some experts have coined the term “pro-relocation approach”. With this approach there is a general acceptance or, in some instances, a presumption in favour of the primary caregiver. With this approach the primary caregiver can relocate with the children unless the non-relocating parent illustrates clearly that the relocation would be detrimental to them. This approach and reasoning was highlighted by the court in Van Rooyen v Van Rooyen. The court in Godbeer v Godbeer reasoned that if the primary caregiving parent makes a decision to move and has given mature and rational thought to the matter, then the presumption is that the relocation is in the best interests of the child.
There is also the neutral approach where there is neither a presumption in favour of or against relocation and a court applies a fresh enquiry into each case as it arises. This is the view taken by most of our courts; each matter is judged on its own merits with the best interests of the child given the most consideration. The motive for relocation must be genuine, reasonable and bona fide (in good faith). The reason should not be merely to frustrate the access rights of the other parent.
Relocation will be seen as beneficial and in the best interests of the children in instances where they will experience less crime, less abuse, easier access to extended family, better schools, safer communities, emotional and financial improvement, and/or separation from an abusive or disturbed parent. However, these potential benefits need to be weighed against any adverse consequences caused by removing a child from their home base. The frustrations of the other parent’s rights and responsibilities will also have to be considered and accommodated.
For the sake of the children?
The question that arises when a partner is stuck in an abusive relationship and has a child is whether they now need to remain in close proximity to the abusive partner for the sake of the children. Recent case law highlights that neither parent should have a presumptive right to relocate or block relocation. Each case has to be determined on its own merits.
The process of relocation
If one parent wants to relocate, an urgent application can be brought through the High Court, if the other parent has refused consent. The court may require an expert (either a private social worker or the Office of the Family Advocate) to conduct an investigation and report. The report will assist the court in deciding whether or not the relocation is in the children’s best interest.
One thing is for sure: no-one should be forced to stay in an abusive relationship. If a bona fide case exists, the court will make the order to relocate. Although the court process may be time-consuming, it is worth the wait.
Below are the contact arrangements recommended by the office of the Family Advocate for children under the age of six:
|0 – 19 months||Shorter and more frequent periods of contact recommended. Three hours per visit.||NO|
|19 – 36 months||Weekly contact, a portion of one or both days of the weekend||NO|
|3 – 6 years||Predictable and regular contact, full weekends are possible at this stage||YES|
Contact a lawyer
Leaving an abusive relationship may seem the obvious thing to do to outsiders, but we know it can be difficult and scary. The abusive partner may make threats that, while unfounded, can seem all too real to a vulnerable person already undermined by physical or emotional violence. If you need support to leave a situation that is doing harm to you and your children, SD Law can help.
We are experts in divorce and family law and have dealt with many cases of intimate partner violence, psychological abuse, and narcissistic control. If you are considering divorce or just want to discuss your options, we can guide you through the process with compassion and dignity. We can also help you relocate with your child if need be. Contact attorney Simon Dippenaar on 086 099 5146 or email email@example.com.
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- Domestic violence: protection orders
- Moving with children post-divorce? What you need to know
- International child custody
The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.